After nine weeks of testimony from multiple government witnesses, including FBI agents, the Justice Department finally concluded its case-in-chief in the Proud Boys’ seditious conspiracy trial on Monday.
Five Proud Boys, including the group’s leader, Enrique Tarrio, are accused of conspiring to “oppose the lawful transfer of presidential power by force” on January 6, 2021. It is Attorney General Merrick Garland’s most consequential case related to January 6; convictions will help build a similar case against Donald Trump largely based on his infamous “stand back and stand by” remark to the Proud Boys during an October 2020 presidential debate.
Most of the evidence is nothing more than inflammatory, braggadocious chatter in group texts; Tarrio wasn’t even present at the Capitol on January 6. Another defendant, Ethan Nordean, can be seen on surveillance video walking through an open door as Capitol police stood nearby.
Similar to other so-called “militia” groups tied to January 6, no one brought weapons to the Capitol that day; no one was charged with assaulting police officers or lawmakers. A key piece of evidence that prosecutors claimed was a road map for the “attack” on the Capitol wasn’t produced by any Proud Boy but by a former intelligence asset who himself sent the plan to Tarrio through a third party.
The document represented just one more instance of how a government agent helped shape the government’s narrative that the Proud Boys plotted in advance to carry out an “insurrection” on January 6. In fact, much like the FBI-engineered plan to “kidnap” Michigan Governor Gretchen Whitmer in 2020, court proceedings confirm that FBI assets might outnumber criminal defendants.
At least 10 and possibly up to 15 FBI informants were embedded in the group months before and continuing after the events of January 6. Informants participated in numerous group chats, cozied up to leadership, and even accompanied the Proud Boys to Washington.
One known informant, according to a September 2021 New York Times report, was involved in the first breach of Capitol grounds and entered the building that afternoon.
But prosecutors and Judge Timothy Kelly have tried their best to prevent the public from learning the full scope of the FBI’s involvement. The docket is littered with sealed hearings and filings; prosecutors presented to the defense team heavily redacted reports related to FBI informants just before the trial began.
“Everything has been done under cover,” one defense attorney recently complained in court. A consortium of major news corporations also knocked Kelly this week for holding “sealed hearings and exclud[ing] the press and public from attending proceedings in this high-profile case.”
Kelly also took the highly unusual and prejudicial step of requiring the defense to “pre-clear” questions with prosecutors before asking a witness about the use of informants—but information is slowly trickling as the defense finally gets their turn.
For the second time this month, Kelly suspended the trial on Wednesday after prosecutors confessed that a key witness for the defense, who was scheduled to testify on Thursday, had worked as an FBI informant during the entire investigation. Although prosecutors have known for months that the defense might call this person as a witness, they waited until the last minute to tell defense attorneys, who were blindsided by the news.
It got worse from there. A bombshell motion filed by the defense shortly after the disclosure revealed the informant cozied up to defendants and their attorneys for more than 20 months—from April 2021 until January 2023 when the trial began.
“During this period of time, the CHS (confidential human source) has been in contact via telephone, text messaging and other electronic means, with one or more of the counsel for the defense and at least one defendant,” wrote Carmen Hernandez, the public defender representing Zachary Rehl. “During this period of time, the CHS also participated in prayer meetings with members of one or more of the defendants’ families. The CHS also engaged in discussions with one of the defendant’s family members about replacing one of the defense counsel. The above may not include all the communications that were initiated by or engaged in by the CHS.”
Hernandez demanded “all recordings or reports that it may have regarding the defense team, all interview reports or FBI memos relating to the recording or reporting of the defense team, and all internal memos prepared by the United States Attorney’s Office and Department of Justice attorneys relating to any reporting on and recordings of the defense team.”
Prosecutors responded by claiming no such records exist and that “the FBI never tasked the CHS with gathering any information on the defendants or their defense counsel” even though the FBI was “generally aware that the CHS was active in assisting defendants—and their families, including by assisting in fundraising efforts and protesting against their conditions of confinement.”
Further, U.S. Attorney Matthew Graves’ office argued, the fact that “defense counsel chose to communicate with the CHS about matters related to this prosecution is a decision made by them.”
As the trial drags on, Kelly has his hands full running interference for the Justice Department. (Kelly is a former assistant U.S. attorney for the District of Columbia, the same office handling every January 6 prosecution.) The judge abruptly suspended the trial a few weeks ago amid the discovery of thousands of hidden messages exchanged between FBI agents that discussed doctoring a report about an informant, destroying evidence, and FBI surveillance of communications between Rehl and his former attorney.
After prosecutors claimed, without evidence, that the evidence-destruction chatter pertained to a closed case and that Rehl surrendered his rights to attorney-client privileged by using a monitored communications system from jail, Kelly dropped the matter entirely.
Kelly this week similarly quashed a defense subpoena to compel testimony from another Proud Boy who also turned out to be an FBI informant. Proud Boy member Kenneth Lizardo, Kelly admitted in his order, “closely interacted” with the group, particularly Tarrio. Lizardo picked Tarrio up from jail on January 5—he had been arrested on charges of burning a Black Lives Matter banner in December 2020—and drove him to an underground garage where Tarrio met with Stewart Rhodes, the now-convicted head of the Oath Keepers.
Lizardo warned he would invoke his Fifth Amendment privilege to avoid potential criminal charges himself for his involvement with the Proud Boys and presence at the Capitol on January 6. So Kelly let him off the hook while noting Lizardo “has had a reporting relationship with the FBI.”
That’s one way to put it.
FBI officials to this day refuse to answer questions about the bureau’s foreknowledge and engagement in the events of January 6. The January 6 committee did not bother to interview FBI Director Christopher Wray or then-head of the Washington FBI field office, Steven D’Antuono, who also ran the Whitmer fednapping hoax.
But the shroud of secrecy is gradually disintegrating no matter how hard Beltway lifers like Judge Kelly attempt to keep it intact. Recent polls indicate a solid majority of Americans believe federal assets provoked the Capitol protest; revelations emerging from the Justice Department’s biggest case will only bolster those justified suspicions.